Ms Donna Parsons-Gammon v Roxx Industrial Pty Ltd
[2024] FWC 2325
•2 SEPTEMBER 2024
| [2024] FWC 2325 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Donna Parsons-Gammon
v
Roxx Industrial Pty Ltd
(C2024/4930)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 2 SEPTEMBER 2024 |
Application to deal with contraventions involving dismissal – jurisdiction – whether out of time – date dismissal took effect – application not out of time – jurisdictional objection dismissed
On 17 July 2024, Donna Parsons-Gammon (Ms Parsons-Gammon or the applicant) made a general protections application under s 365 of the Fair Work Act 2009 (Clth) (FW Act) alleging contraventions associated with her dismissal.
Ms Parsons-Gammon’s application is against her former employer Roxx Industrial Pty Ltd (Roxx Industrial, the respondent or the employer), which she alleges committed the contraventions.
The respondent opposes the application. It filed a response on 7 August 2024 raising a jurisdictional issue. It claims that the application is out of time and that time should not be extended. Ms Parsons-Gammon submits that the application is not out of time.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires applications under s 365 to be within jurisdiction before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the jurisdictional issue if Ms Parsons-Gammon’s application is to proceed further.
I issued directions on 16 August 2024.
I heard the out of time matter by video on 26 August 2024.
Ms Parsons-Gammon was represented by a legally qualified officer of the CFMEU. Roxx Industrial was represented by its co-owner, Ms Paola Roxx.
I heard evidence from Ms Parsons-Gammon and Ms Roxx.
I take into account that Roxx Industrial is a small business which has only operated for a short period, has no dedicated human resources capacity and has not previously dismissed an employee or dealt with a FW Act dispute.
Some facts relevant to the out of time matter, and in particular the content of conversations between Ms Parsons-Gammon and Ms Roxx on 7 and 12 June 2024, are in dispute. I make findings on those matters below.
Facts
Background
Roxx Industrial is a small business employing between two and five persons. It provides services to the construction industry. It has operated for less than a year. It is owned by Mr Vaughan Roxx and Ms Paola Roxx.
Ms Parsons-Gammon was a mature aged employee, in her 60’s. She worked for Roxx Industrial for just over one month (from 6 May 2024) as a casual general hand at the Werribee Zoo where a separate company (Fairbrother) was building an elephant enclosure. Roxx Industrial was contracted by Fairbrother to provide support services.
At the time of engagement, Ms Parsons-Gammon was appreciative of Mr and Ms Roxx for employing her and providing an opportunity to work in the labour market.
Ms Parsons-Gammon worked full time hours on a fortnightly roster, one week 40 hours and the other 32 hours (every second Monday being a site RDO). After her first week of employment, and with the assistance of the CFMEU, Roxx Industrial clarified to Ms Parsons-Gammon that she was a casual employee (employed and paid as a casual) but working a regular pattern of full time hours.
The practice was that Ms Parsons-Gammon would complete a timesheet on the Friday of each week (by hand) and send that time sheet (verified by the site manager) to Ms Roxx for payment of wages the following Wednesday.
On 17 May 2024, Ms Parsons-Gammon sustained a workplace injury to her shoulder whilst lifting the lid of a skip bin.
Thinking the injury would resolve, and not wanting to cause a fuss or lose her job, Ms Parsons-Gammon did not immediately report the injury.
When the injury did not resolve after a week, Ms Parsons-Gammon reported it by email to Ms Roxx on 24 May, stating:[2]
“…I don’t want to lose the job I love working here and I can still do my job…”.
Ms Roxx thanked Ms Parsons-Gammon for informing her, adding “I hope everyone understands that you’re OK”.
Ms Parsons-Gammon left work earlier than rostered on 4 June 2024 to attend an ultrasound appointment for her shoulder. She obtained permission from the Fairbrother site manager to leave early but did not think to seek permission from her employer.
7 June conversation
On 7 June 2024 Ms Parsons-Gammon worked a full day’s shift. Whilst driving home, she had a vehicle accident when hit by another car from the rear. Unsure about what to do and again concerned about losing her job, she again did not immediately inform her employer.
At about 7pm on the evening of Friday 7 June Ms Roxx telephoned Ms Parsons-Gammon and (with Mr Roxx also on the line by speaker phone) spoke to Ms Parsons-Gammon about her just submitted weekly time sheet. The employer had noticed a two hour period of absence for 4 June for which it was unaware and had not authorised.
The employer was unhappy that Ms Parsons-Gammon had not sought its prior authorisation for the absence. Ms Parsons-Gammon explained the reason for the absence and the authorisation that she says she had obtained from the Fairbrother site manager. Ms Roxx told Ms Parsons-Gammon in plain terms that Roxx Industrial and not Fairbrother was her employer and that absences from work needed to be notified and approved by it. Ms Parsons-Gammon apologised for not having done so.
There is a dispute as to what was then said. I make findings concerning this conversation in the body of this decision.
During the discussion on 7 June the employer remained unaware of the vehicle accident earlier that day on the way home from work.
12 June conversations
Ms Parsons-Gammon worked a rostered shift as usual on Wednesday 12 June 2024. She was also paid that day as usual, for the previous week’s work though the pay was deposited later in the day than usual. During the afternoon, Ms Parsons-Gammon emailed Ms Roxx asking when the pays would go through. Ms Roxx responded indicating that day, but acknowledged the payroll was a little late.
At 5.35pm on 12 June Ms Parsons-Gammon received the results of the ultrasound from her doctor. A shoulder tear had been diagnosed. The doctor advised that two weeks rest was required and provided a medical certificate to that effect (“unfit for work form 12/06/2024 to 23/06/2024 inclusive”).[3]
Ms Parsons-Gammon immediately telephoned Ms Roxx. They spoke at 6pm. Ms Parsons-Gammon informed Ms Roxx of the diagnosis and that she had been certified unfit for two weeks.
There is a dispute as to what was then said and whether there was a second phone conversation. I make findings concerning this conversation(s) in the body of this decision.
Ms Parsons-Gammon did not work between 13 June 2024 and 28 June 2024 inclusive. She had been certified unfit.
On Friday 14 June 2024, Ms Parsons-Gammon sent Ms Roxx a handwritten time sheet for that week. It recorded the full shift she had worked on 12 June. Alongside 13 and 14 June Ms Parsons-Gammon wrote “off work due to injury”.[4]
On 14 June 2024, accompanying the time sheet, Ms Parsons-Gammon also sent Ms Roxx a copy of the doctor’s medical certificate of 12 June.
Roxx Industrial did not respond to the 14 June time sheet or medical certificate.
On 19 June 2024, the following Wednesday and usual payday, Ms Parsons-Gammon received her weekly pay for the week prior (that is, for the day worked on 12 June). The payslip stated, “Employment details: pay frequency weekly”[5], as had earlier payslips. It did not state that this was a final payment or payslip.
On 18 June 2024, Ms Parsons-Gammon filed a Workcover claim for the shoulder injury. She engaged solicitors Maurice Blackburn to represent her with respect to that claim.
Ms Parsons-Gammon also made a TAC claim with respect to the vehicle accident.
Events 26, 27 and 28 June
By email on Wednesday 26 June 2024 (at 7.44pm), Ms Parsons-Gammon sent Ms Roxx a Workcover medical certificate of incapacity.
Ms Roxx, who by then had decided to limit her contact or communication with Ms Parsons-Gammon, responded as follows:[6]
“Donna
It is in the hands of Worksafe now as per your claim.
Your position is currently filled.
They will be in touch with you.
Please in future communicate during business hours.
Regards
Paola Roxx”
On the morning of Thursday 27 June 2024, Ms Parsons-Gammon forwarded the employer’s response of 26 June to her solicitors.
Ms Parsons-Gammon was then advised by her solicitors that she should ask Roxx Industrial for a copy of the shoulder injury incident report. The following email exchange occurred that day between Ms Parsons-Gammon and Roxx Industrial:[7]
Ms Parsons-Gammon:
“Can you please get me a copy of the incident report from John Ellis as my lawyer has asked for it. Thank you.”
Ms Roxx:
“Donna,
Please contact worksafe.
They have a copy.
We are no longer your point of contact.
Paola Roxx”
On Friday 28 June 2024, Ms Parsons-Gammon wrote to Roxx Industrial about her TAC claim. The following email exchange occurred:[8]
Ms Parsons-Gammon:
“Hi are you able to fill in your part of my TFN declaration form for TAC please.” [tax file declaration screenshot attached]
Ms Roxx:
“Donna,
As per our previous email, we are no longer your point of contact.
You are no longer our employee.
We will only communicate and fill out documents with Worksafe directly.
Any questions, you should ask them.
Regards
Paola”
According to her evidence, Ms Parsons-Gammon was “shocked” at reading that she was no longer employed by Roxx Industrial.[9]
Dismissal application
On 2 or 3 July 2024, Ms Parsons-Gammon spoke to her solicitors. Though her solicitors were only engaged on the Workcover claim, she was informed in general terms that she had been treated badly and had remedies concerning the termination of her employment. It was left to Ms Parsons-Gammon to decide whether to pursue those remedies, and if so, to file her own application.
Ms Parsons-Gammon was in two minds about making a dismissal claim. After speaking further to family and friends, and with the support of her solicitor, on 17 July 2024 she decided to do so. She went to the Commission’s website and, via the online portal, filled out an application and lodged it electronically that day.
In her application Ms Parsons-Gammon stated that she was filing within 21 days of the date dismissal took effect, which she stated to be 28 June 2024. According to Ms Parsons-Gammon’s evidence, it was only when she was completing the online form that she learned of a 21 day time limitation. She calculated that she was still within time (by two days).
The application was subsequently served on Roxx Industrial by the Commission. In its response, Roxx Industrial stated that Ms Parsons-Gammon was dismissed on 7 June 2024, with the dismissal taking effect on 12 June 2024. The respondent submits that she was dismissed for unreliability, not for the exercise of a workplace right.
Submissions
Ms Parsons-Gammon
Ms Parsons-Gammon submits that she was dismissed on 28 June 2024 when she was informed that she was no longer an employee of Roxx Industrial.
Ms Parsons-Gammon submits that no notification of dismissal occurred prior, including during the conversations with Ms Roxx on 7 or 12 June.
Ms Parsons-Gammon submits that the conduct of the parties following 7 and 12 June supports a finding that she was still employed after 12 June.
Ms Parsons-Gammon submits that the communication by Ms Roxx on 26 and 27 June 2024 did not constitute a dismissal because the communication concerned the Workcover claim only, and, in any event, the words used by the respondent were not clear and unambiguous.
Ms Parsons-Gammon submits that the application is two days within time, there being nineteen days between 29 June 2024 and 17 July 2024 (inclusive).
In the alternative, Ms Parsons-Gammon submits that time should be extended because the employer’s ambiguous communications, including its failure to comply with the FW Act’s obligations to provide written notice of termination (s 117) and a post termination separation certificate, led to genuine confusion in Ms Parsons-Gammon’s mind concerning her employment status.
Roxx Industrial
Roxx Industrial submit that Ms Parsons-Gammon was dismissed on 7 June 2024, effective from 12 June 2024, and had been told this during both 7 and 12 June in conversations with Ms Roxx.
Roxx Industrial submit that the written statements made by it on 26 June that her position was “currently filled” and that the business was “no longer your point of contact” make it abundantly clear that Ms Parsons-Gammon was no longer its employee.
Roxx Industrial submit that it was also apparent that Ms Parsons-Gammon was no longer employed after 12 June because she was not further rostered to work, nor in fact worked after this date, had her position filled by another person and was made aware on 12 June that that would happen.
Roxx Industrial submit that as the dismissal took effect on 12 June it is fourteen days out of time.
Roxx Industrial submit that time should not be extended. Ms Roxx could have filed a claim earlier. She had access to a solicitor from at least 2 and 3 July 2024 but took another two weeks to make a claim. Indecision is not an exceptional circumstance.
Being out of time, the application should be dismissed.
Consideration
Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 366 provides:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a)the reason for the delay; and
(b)any action taken by the person to dispute the dismissal; and
(c)prejudice to the employer (including prejudice caused by the delay); and
(d)the merits of the application; and
(e)fairness as between the person and other persons in a like position.”
When did the dismissal take effect?
It is not in dispute that Ms Parsons-Gammon was dismissed. In this matter, the dispute concerns when the dismissal took effect.
It is necessary to determine this question because it bears on whether the application is out of time. If the dismissal took effect on 28 June 2024 (as asserted by Ms Parsons-Gammon), the application is not out of time. If the dismissal took effect on 12 June 2024 (as asserted by the respondent), the application is fourteen days out of time.
When a dismissal takes effect is a question of fact.
It is well-established that a dismissal does not take effect until it is communicated to the person dismissed in plain and unambiguous terms[10] or where communication in those terms is reasonably accessible to the person dismissed.[11]
To determine when the dismissal took effect, I need to make findings on the disputed evidence concerning the telephone conversations between Ms Parsons-Gammon and Ms Roxx on 7 and 12 June 2024.
With respect to the 7 June conversation, Ms Roxx says that she told Ms Parsons-Gammon that she was dismissed for being unreliable and that Ms Parsons-Gammon would finish-up working on the next rostered day only (12 June, as 10 June was a public holiday and 11 June a site RDO). Ms Parsons-Gammon asserts that nothing of the sort was said; rather that the phone conversation ended on a friendly note with a brief discussion about what each was doing on the long weekend, and with Ms Roxx asking to be kept informed about the results of the ultrasound.
I prefer the evidence of Ms Parsons-Gammon. I do not find that Ms Parsons-Gammon was told she was dismissed on 7 June effective from 12 June. Nor do I find that Roxx Industrial intended to dismiss Ms Parsons-Gammon on 7 June effective 12 June.
With respect to the 12 June conversation(s), Ms Roxx says that she told Ms Parsons-Gammon that she would be filling her role and that she was unreliable. In contrast, Ms Parsons-Gammon says that she told Ms Roxx that she would send across the 12 June medical certificate and apologised for the inconvenience, to which Ms Roxx expressed concern at such short notice of unavailability to work as it risked jeopardising the Fairbrother contract. According to Ms Parsons-Gammon, Ms Roxx then indicated that she would speak to Fairbrother to ascertain if Ms Parsons-Gammon could work the next two days (Thursday and Friday) on a restricted basis until Roxx Industrial could find a replacement.
Ms Parsons-Gammon’s evidence was that she then received a return phone call from Ms Roxx a few minutes later (at 6.45pm) in which Ms Roxx indicated that she had spoken to Fairbrother and they had indicated that Ms Parsons-Gammon could not work on site the next day as she was medically certified unable to do so. Ms Parsons-Gammon again apologised to Ms Roxx to which Ms Roxx replied, “we will try to find somebody to fill in for the next two weeks; we will keep in contact to see how you are going”. The conversation ended with Ms Parsons-Gammon saying words to the effect of “thank you and I will let you know if there are changes”.
I again prefer the evidence of Ms Parsons-Gammon. I do not find that Ms Roxx simply noted what she was being told and said no more. Nor do I accept the evidence of Ms Roxx that there was only one conversation. I find that there were two conversations. I find it more probable than not that Ms Roxx did in fact contact Fairbrother in between both calls to ascertain if Ms Parsons-Gammon could work on some restricted basis to enable Roxx Industrial a few more days to find a replacement.
I prefer the evidence of Ms Parsons-Gammon because she had clearer recall, and her evidence was more detailed and plausible on the points of difference. Further, her version of the conversations on 7 and 12 June was also more consistent with surrounding circumstances including the subsequent conduct of the parties.
In particular I have regard to the following:
on 12 June Ms Parsons-Gammon worked a regular shift. I do not accept that Ms Parsons-Gammon was only rostered that day because the employer was required to give a casual one hour’s notice, as Ms Roxx claims. Aside from the fact that notice can be lawfully paid in lieu, a full shift of eight hours was worked, not simply one hour;
on 12 June Ms Parsons-Gammon informed Ms Roxx that she had a medical certificate of unfitness for two weeks. This prompted a discussion between the two about the inconvenience of finding a replacement at short notice. That Ms Roxx expressed understandable angst at the sudden and short notice of absence and need to find a replacement is not consistent with her having given notice of dismissal five days earlier;
on 14 June Ms Parsons-Gammon sent Ms Roxx a copy of the 12 June medical certificate. That certificate was not a Workcover certificate of incapacity. It was a medical certificate from her general practitioner for a two week period. It was sent to the employer in its capacity as the employer, not solely as part of a former employee’s Workcover claim;
on 14 June Ms Parsons-Gammon sent Ms Roxx her weekly time sheet for that week, with a handwritten notation that she was “off work” due to injury. The employer did not respond. Even considering that Roxx Industrial was not versed in employment matters, had Ms Parsons-Gammon not been its employee when it received the time sheet in that form, it could be reasonably expected that the employer would have disabused a former employee of that fact. Roxx Industrial did not do so; and
on 19 June the employer paid Ms Parsons-Gammon according to the time sheet as submitted. The payment was made on the next regular pay day. The payment was made via a payslip in the usual form. There was nothing in the timing, method or detail of payment that suggested it was a final payment concluding an earlier termination of employment.
These surrounding circumstances lend weight to a finding that Ms Parsons-Gammon was not dismissed on 7 June effective 12 June. Rather, the conduct of the parties following 7 and 12 June supports a finding that Ms Parsons-Gammon was still employed after 12 June, even if Ms Roxx believed otherwise once she filled the position. Coupled with my finding on the competing versions of the telephone conversations, I reject the employer submission that the dismissal took effect on 12 June.
I now turn to the communications on 26, 27 and 28 June.
I do not find that the emails by Roxx Industrial on 26 and 27 June were notices ending the employment relationship.
Firstly, they were communications specifically concerning the Workcover claim being advanced by Ms Parsons-Gammon and the related incident report. There is nothing necessarily inconsistent between a subsisting employment relationship on the one hand and the employer on the other telling the employee that the employee should communicate with the relevant regulatory agency managing their claim. Doing so is consistent with both an employment relationship existing and an employment relationship having ended.
Secondly, and decisively, the employer’s communications on 26 and 27 June were at best ambiguous as to the existence of the employment relationship. They were not clear and unambiguous communication of the relationship ending. The statement on 26 June to an injured employee medically certified as unfit that their position had been “currently filled” was not clear evidence of the relationship having ended or notification of its ending. That Ms Roxx added “please in future communicate during business hours” was indicative of anticipated ongoing communication and was itself ambiguous. Stating, as the employer did on 27 June, that “we are no longer your point of contact” in response to an email about the incident report was similarly ambiguous.
This ambiguity stands in contrast to the employer’s next communication on 28 June when Roxx Industrial advised Ms Parsons-Gammon in clear and plain terms that “you are no longer our employee”. Though it did not use the word dismissal or termination, this was a termination on the employer’s initiative. Thereafter there was no ongoing employment relationship. It was a dismissal within the meaning of s 386(1)(a) of the FW Act.
For these reasons, I find that Ms Parsons-Gammon was dismissed by Roxx Industrial on 28 June 2024 effective that day when it provided clear and unambiguous notice that Ms Parsons-Gammon was no longer its employee.
I make this finding irrespective of whether Ms Roxx believed that Ms Parsons-Gammon ceased to be an employee at an earlier time. Neither the subjective belief of an employer or an employee that a person has or has not been dismissed determines whether that person has in fact been dismissed or when a dismissal took effect. Well established principles clearly provide that it is an objective and not subjective test which determines such matters.
Nor is this conclusion disturbed by the fact that Ms Parsons-Gammon was not rostered to nor in fact worked after 12 June, had her position backfilled by another person after this date or was told on 12 June that that would happen. Whilst each of these are accurate factual assertions by the employer, they occurred in the context of both Ms Parsons-Gammon and Roxx Industrial being advised from 12 June that Ms Parsons-Gammon had been medically certified as unfit to work for at least a two week period. In that context, not being rostered, not working and having the position backfilled in this period was not inconsistent with a casual employment relationship continuing until work could be resumed or the relationship otherwise terminated.
Conclusion
As I have found that Ms Parsons-Gammon’s dismissal took effect on 28 June 2024 the application is within time.
It is unnecessary to consider whether time should be extended as this is not a late application. Had I been required to do so I would have, having regard to the factors in s 366(2) and particularly the lack of clarity in the employer’s ambiguous conduct and communication, exercised a discretion to extend time.
The application is within jurisdiction. It will be listed for conference under s 368. The jurisdictional objection by Roxx Industrial is dismissed.
An order giving effect to this decision accompanies its publication.[12]
DEPUTY PRESIDENT
Appearances:
N. Grealy, of the Construction, Forestry and Maritime Employees Union, on behalf of D. Parsons-Gammon
P. Roxx, of and on behalf of Roxx Industrial Pty Ltd
Hearing details:
2024.
Adelaide (video);
26 August.
Final written submissions:
D. Parsons-Gammon 26 August 2024
[1] [2020] FCAFC 152
[2] A2
[3] R7
[4] R6
[5] R8
[6] A1 DPG1
[7] A4
[8] A1 DPG2
[9] A1 paragraph 49
[10] Mihajlovic v Lifeline Macarthur[2013] FWC 9804; Goodenough v CXN Transport Pty Ltd[2023] FWC 715, [32] and [34]
[11]Ayub v NSW Trains [2016] FWBFC 5500, [50]
[12] PR778790
Printed by authority of the Commonwealth Government Printer
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